Mr Ratima seeks an extension of time to appeal against his sentence of 10 years’ imprisonment with a minimum period of imprisonment (MPI) of five years, imposed by the High Court on 23 February 2017,[1] following his guilty plea on one charge of robbery.[2]
[2]Crimes Act 1961, s 234; maximum penalty of 10 years’ imprisonment.
For Mr Ratima, this was a stage-three offence under the three strikes regime that was then in force,[3] and he was accordingly sentenced to the maximum 10-year term of imprisonment for the offence. However, given the circumstances of the offence and the offender, the Judge considered it would be manifestly unjust to order Mr Ratima to serve the entire 10-year sentence without parole.[4] A five-year MPI was imposed instead.
[3]Sentencing Act 2002, s 86D(2). The three strikes regime, ss 86A–86I, was repealed by s 5 of the Three Strikes Legislation Repeal Act 2022, with effect from 16 August 2022.
[4]High Court judgment, above n 1, at [29]–[31]; and Sentencing Act, s 86D(3).
Mr Ratima seeks to appeal on the ground that the sentence amounted to disproportionately severe treatment, in breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA), given his mental illnesses and the sentence he would have received but for the three strikes regime. He does so on the basis of the Supreme Court’s October 2021 decision in Fitzgerald v R,[5] where it was held that the courts were not required to impose the maximum penalty to a third strike offender where doing so would breach s 9 of NZBORA. In such instances, ordinary sentencing principles were to be applied instead.[6]
This appeal was filed on 7 February 2023. As sentence appeals must be brought within 20 days after the date of the sentence appealed against,[7] the appeal was almost six years out of time. It was also filed 16 months after the decision in Fitzgerald. The Crown opposes an extension of time.
[7]Criminal Procedure Act 2011, s 248(2).
On 9 May 2023, Katz J directed in a minute that the application for extension of time to appeal was to be dealt with at the hearing, together with the appeal.
The offending
The facts of the offending were summarised by the High Court Judge as follows:
[6] ... In the early hours of the morning on 15 May 2016, you spoke with the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ratima v The King [2024] NZCA 254
Case
[2024] NZCA 254
Decision Date
CaseChat Overview and Summary
This appeal was brought by Mr Kingi Ratima, seeking an extension of time to appeal his sentence of 10 years’ imprisonment with a five-year minimum period of imprisonment (MPI), imposed by the High Court in 2017 following his guilty plea to one charge of robbery. Mr Ratima sought leave to appeal on the ground that the sentence amounted to disproportionately severe treatment, in breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA), given his mental illnesses and the sentence he would have received but for the three strikes regime. The appeal was filed almost six years out of time and 16 months after the Supreme Court’s October 2021 decision in Fitzgerald v R. The Crown opposed an extension of time. The Court found that while the sentence was disproportionate to the seriousness of Mr Ratima’s offending, it did not breach s 9 of the NZBORA. The appeal did not meet the high threshold required to warrant an extension of time. The application for an extension of time to appeal was declined.